Actio communi dividundo: The judicial partition of co-owned property

It was recently reported in the media that an increasing number of people are opting to buy properties collectively.1 This trend is hardly surprising given the recent hikes in interest rates and the rising costs of living. This has, however, also given rise to a growing number of disputes between co-owners, making the Roman maxim, communio est mater rixarum or “co-ownership is the mother of all disputes”, truer than ever.

Property can be owned jointly by more than one owner. In that instance, each co-owner has an undivided share in the co-owned property and is entitled to use the joint property reasonably and in proportion to their share. If the property is let, they would be entitled to share in the profits in accordance with their proportionate shares in the property. The co-owners would furthermore be obliged to pay the expenses applicable to the property in the same ratio as their proportionate shares.

The law draws a distinction between bound co-ownership and free co-ownership. Bound co-ownership comes into existence due to another underlying legal relationship that binds the parties, such as a marriage in community of property. Free co-ownership, on the other hand, is the situation where the co-ownership of property is the only legal relationship between the parties, for example, where two siblings inherit immoveable property in equal and undivided shares. In the latter case, if a termination of the co-ownership is required, that can be achieved through the actio communi dividundo.

The actio communi dividundo is a remedy which originates from Roman law. It empowers the courts to order the partitioning of the co-owned property, whereafter the joint ownership ceases to exist. The basic notion underlying the actio communi dividundo is that no co-owner is, in normal circumstances, obliged to remain in co-ownership against his/her will and any co-owner can claim the division of the joint property according to that joint owner’s share in the property. The core principals of the actio communi dividundo were summarized by the Appellant Division in Robson v Theron 1978 (1) SA 841 (A) as follows:

  1. This action is available to those who own specific tangible things (res corporales) in co-ownership, irrespective of whether the co-owners are partners or not, to claim division of the joint property.
  2. Hence this action may be brought by a co-owner for the division of joint property where the co-owners cannot agree to the method of division. Since a partnership asset is joint property which is held by the partners in co-ownership, it follows that a partner may, as a co-owner, bring this action for the division of a partnership asset where the co-partners cannot agree to the method of its division.
  3. It is for purposes of this action immaterial whether the co-owners possess the joint property jointly or neither of them possess it or only one of them is in possession thereof.
  4. This action may also be used to claim, as ancillary relief, payment of praestationes personales (ie personal items of payment) relating to profits enjoyed or expenses incurred in connection with the joint property.
  5. A court has a wide equitable discretion in making a division of joint property. This wide equitable discretion is substantially identical to the similar discretion which a court has in respect of the mode of distribution of partnership assets among partners as described by Pothier.”

Where an action for relief in terms of the actio communi dividendo is brought, a court may award the joint property to one of the owners provided that he/she compensates the other co-owner or may cause the joint property to be put up to auction and the proceeds divided among the co-owners. Where there is no agreement between the parties as to how the joint asset is to be divided, a liquidator may be appointed to sell the assets and divide the proceeds amongst the co-owners. The actio communi dividendo may also be used to claim for adjustments for profits enjoyed and expenses incurred. Such ancillary claims must, however, be specifically pleaded in the papers.2

Whilst the actio communi dividundo is traditionally regarded as an action, the remedy has historically been invoked by way of both action and motion proceedings. Ultimately, the determining factor for deciding which procedure to use is whether there is a material dispute of fact. Absent a material dispute of fact, a party would be entitled to seek relief in terms of the actio communi dividundo in application proceedings.3